Expanding the Definition of Torture

Human Rights Dialogue 2.10 (Fall 2003): "Violence Against Women"

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Historically, the popular understanding of torture has helped to maintain a gender-biased image of the torture victim: it is the male who pervades the political and public sphere and thus it is the male who is likely to be targeted by state violence and repression. Such an image, however, neglects women’s experiences as victims and survivors of torture.

Until recently, women’s human rights organizations often did not pursue women’s issues within the framework of the mainstream human rights treaties but instead concentrated on CEDAW. While this tendency is logical––CEDAW is an important and effective instrument for ensuring specifically women’s rights––it is equally important to draw on the strengths of other human rights tools.

By concentrating on other human rights mechanisms, the World Organisation Against Torture (OMCT), a network of worldwide human rights NGOs, hopes to take women’s issues off the periphery and into the mainstream, where they may receive more attention. OMCT is committed to addressing violence against women in our struggle against torture, summary executions, forced disappearances, and other forms of ill-treatment. Our work did not specifically address gender issues until shortly after the 1993 Vienna World Conference on Human Rights and the 1995 Fourth World Conference on Women in Beijing, both of which highlighted the importance of recognizing women’s rights within the ambit of human rights. Inspired by these events, we formed a program on violence against women to work toward integrating a gender perspective––“mainstreaming”––into the work of the United Nations human rights treaty-monitoring bodies. A special focus of our work is the Convention against Torture and its monitoring committee. Our work also involves mainstreaming the gender perspective into the work of the various UN Special Rapporteurs, particularly the UN Special Rapporteur on Torture.

As a powerful, well-respected treaty-monitoring body, the Committee against Torture is an important mechanism for pressuring states to exercise due diligence in preventing, investigating, prosecuting, and punishing violence against women. There is no international legally binding instrument specifically concerning violence against women; thus, the Convention against Torture has the possibility of filling one aspect of this gap. Furthermore, the jus cogens status of the prohibition of torture—which means that all states are bound by this prohibition regardless of circumstances or the treaties they have ratified—helps to give additional merit to the concept that violence against women is a fundamental violation of human rights prohibited under international law.

Despite this potential usefulness, the Committee against Torture has adopted a “traditional” reading of torture, which is defined in Article 1 of the convention as an act of severe pain and suffering intentionally inflicted by or with the consent or acquiescence of a public official for the purpose of obtaining information, a confession, or for any other reason based on discrimination. As a result of its narrow reading of torture, the committee has made less progress on integrating a gender perspective into its work when compared with other human rights treaty-monitoring bodies.

The major obstacle to bringing violence against women within the consideration of the committee is the traditional public/private divide. Much violence against women takes place in the private sphere—domestic violence, rape, trafficking, violence in the name of honor, and female genital mutilation, for example. In the past, a strict judicial interpretation made states responsible only for actions committed by state agents, and not those by private individuals. Today, however, a developing corpus of international law has led to the recognition of state responsibility to address the acts of private individuals. In particular, the Velásquez Rodriguez Case of the Inter-American Court of Human Rights articulated the standard of due diligence to prevent and respond to violence committed by nonstate actors (in that case, death squads). Increasingly, women’s rights activists have built on the Velásquez decision to draw parallels between private violence and torture, and specifically to bring certain grave forms of violence against women within the definition of torture where the state has failed to exercise due diligence regarding such acts.

For example, recent work by women’s rights activists has demonstrated how domestic violence in many cases conforms to the definition of torture in the convention. Domestic violence commonly involves severe pain or suffering, and is purposeful and intentional behavior intended to bring about a desired effect, such as punishment and/or control of a woman’s sexuality. The state’s unwillingness to take all possible measures to prevent domestic violence and to protect women from such violence suggests official consent or acquiescence to torture under Article 1 of the convention. In obtaining asylum status for women fleeing privately inflicted violence such as female genital mutilation, women’s rights activists have also successfully used at the national level Article 3 of the convention, which prohibits the extradition of a person to a country where he or she will likely be subjected to torture. Thus, while not all violence against women can be qualified as torture within the meaning of the convention, the mere fact that the perpetrator is a private individual should not automatically lead to the exclusion of such violence from the scope of Article 1.

It is also problematic that the Committee against Torture seems to receive little information on violence against women. Being based in Geneva, OMCT is present at most committee sessions—and we have not observed many other organizations submitting specific information on violence against women. Lack of resources as well as the committee’s general tendency not to address gender-specific violence may prevent or discourage some organizations from doing so.

In attempting to fill this void we have adopted the gender mainstreaming approach. Our core activities include circulating urgent appeals, lobbying at major human rights conferences, and, in collaboration with local NGOs, submitting reports to UN human rights treaty-monitoring bodies.

Our urgent appeals are based on information provided by the members of OMCT’s SOS-Torture network, comprised of human rights NGOs from around the world. We send these appeals to bodies that have considerable influence in the field of protection and promotion of human rights, including Special Rapporteurs of the United Nations and of regional mechanisms. Our lobbying efforts involve intervening before the UN Commission on Human Rights and the UN Sub-Commission on the Promotion and Protection of Human Rights, as well as major human rights conferences. With respect to OMCT’s work with the treaty-monitoring bodies, we submit alternative reports with specific emphasis on the Committee against Torture. These reports contain alternative information for each committee to consider when examining a country’s official report on its implementation of the relevant treaty, and are written in consultation with members of the SOS-Torture network or other reliable national women’s human rights organisations.

OMCT has played a part in the significant evolution of how the gender-neutral human rights mechanisms tackle violence against women. While for years the Committee against Torture did not take gender-specific violence into consideration, in 2001 it expressed concern with respect to four countries in its Concluding Observations about violence against women committed by private individuals, specifically trafficking in women and domestic violence. OMCT had submitted alternative reports on violence against women concerning three of the four countries where these concerns were raised. Nevertheless, these positive steps are far from the regular practice of the committee and much remains to be done.

Our work has also had a positive effect on the other traditional human rights NGOs with whom we work. Typically, NGOs in the SOS-Torture network had rarely addressed the issue of gender-specific violence. Since OMCT has started to issue urgent appeals on violence against women and to remind the SOS-Torture network of this activity, there has been a perceptible increase in the gender sensitivity of the information produced by the network.

OMCT hopes to contribute to the eradication of violence against women, including torture, by promoting the optimal use of all conventional and nonconventional regional and international mechanisms for the prevention of torture. Mainstreaming gender across all UN structures is central to this goal. In our collaboration with local organizations, we highlight the gender mainstreaming approach in order to broaden the ranks of actors dedicated to this campaign.

Read "How the Seed Was Planted," a response to this article by Alda Facio.Use the link in the right column.